Commentary on Protection Order Regulations  

Consultations on Regulations Amending the Firearms Licences Regulations and the Protection Order Regulations  

Commentary on Canada Gazette, Part I, Volume 159, Number 10 

 About NAWL 

The National Association of Women and the Law is a not-for-profit organization that works to advance women’s rights in Canada through feminist law reform. NAWL was heavily involved throughout the lengthy study of former Bill C-21, testified before the House of Commons and Sente committees, and authored a brief from which many amendments to former Bill C-21 were taken. Informed by our expertise and deep knowledge of the legislative history of former Bill C-21, we see a serious issue with the definition of “protection order” and with government discourse about license ineligibility. Find out more at nawl.ca.  

Issue 1 

The proposed regulations define “protection order” as “civil order made … in the interests of the safety or security of a person”. This definition excludes orders that are not civil in nature, such as peace bonds made in the context of domestic violence.  

Excluding peace bonds from the definition of protection order (1) fails to fully protect women in situations of domestic violence, (2) is incompatible with the legislative intent and the text of former bill C-21, and (3) will result in illogical outcomes.  

 1. The choice to exclude peace bonds puts women at risk 

A peace bond is a protection order made by a court under section 810 of the Criminal Code. It is often used in situations of domestic violence. In fact, peace bonds are the primary way that protection orders are used to protect women in situations of domestic violence. These peace bonds are ordered when the police is involved in a situation of domestic violence. As such, these orders are made in high-risk situations. There is no reason why abusers subject to a peace bond should be considered less dangerous than abusers subject to a civil protection order, when the opposite is likely true. Systematically excluding these situations from the protective scope of former bill C-21 puts women’s lives at risk. 

2. This policy choice does not reflect the legislative intent of bill C-21 or respect the scope of delegated authority 

The modern approach to statutory interpretation requires interpreting laws and bills in a way that harmonizes their text, context, and purpose. Legislative debates are part of that context and may reveal the purpose of a provision. 

In the instant case, section 15 of former bill C-21 states that “protection order has the meaning assigned by the regulations but is intended to include any binding order made by a court or other competent authority in the interest of the safety or security of a person”. This formulation is unusual. Committee debates reveal that parliamentarians wanted to ensure no protection order, whatever its name, would be missed. This is why they did not fully define “protection orders” in the bill, ensuring that the regulatory process and associated consultations would be used to make sure no protection order would slip through the definition. At the same time, they wanted to make clear that ALL protection orders should be included. The text of the provision is extremely clear that parliamentarians intended ALL protection orders to be included, which is why they used the words “any binding order”.  

It should be noted that the initial version of the bill stated only “protection order has the meaning assigned by the regulations”. Parliamentarians explicitly rejected the idea of leaving such a broad scope to the regulations and chose to curtail what regulations could do by stating that all protection orders should be included.  

The regulations evidently go against the legislative intent and plain text of the bill by adding the word “civil” to the definition of protection order and thus excluding peace bonds. Perverting the meaning and scope of a stature through a regulation that is manifestly incompatible with the text of a bill is problematic. As described in the Government of Canada’s own Guide to making Federal Acts and Regulations, “Enabling Acts provide an additional source of legal constraints. Regulations must stay within the scope of the authority that the enabling Act grants and must not conflict with it or restrict or extend the scope of its application.” In other words, regulations MUST be written in a way that respects the limits of delegated authority, since they are not made by Parliament. 

In our view, the regulations as presented do not stay within the scope of the delegated authority. To respect legislative intent and be legally valid, the regulation should not arbitrarily exclude what is likely the biggest part of the problem that the legislator aimed to address. The word “civil” should be removed from the definition.  

 3. The exclusion of peace bonds is illogical 

The legislative intent of former bill C-21 is to remove firearms from the hands of abusers and potential abusers in the interest of safety. The legislative text shows a clear safety bias (see e.g. section 70.1, “may have engaged in an act of domestic violence”). Additionally, Parliamentarians chose mandatory outcomes over discretion in situations of domestic violence, a choice which was reflected in several amendments to the domestic violence provisions of former Bill C-21. It would be illogical, in that context, to suggest that Parliament’s intent was that discretion would remain in one of the most dangerous situations targeted by the bill. Therefore, the fact that a peace bond may include a prohibition from owning weapons does not change the fact that the regulations are problematic. People who are subject to a peace bond should, like people subject to other protection orders made in the interest of the safety of a person, face the automatic revocation of their firearms license for the duration of the protection order.  

Issue 2 

Section 6.1 reads: “Subject to section 70.‍3 and the regulations, an individual is not eligible to hold a licence if they are subject to a protection order or have been convicted of an offence in the commission of which violence was used, threatened or attempted against their intimate partner or any member of their family.” The provision is clear and should be interpreted as follows: it is not retroactive (meaning it only applies to applications for licenses made after the coming into force of the provision) but it is retrospective (it applies regardless of the date of conviction). This is evident from an interpretation of the text of the bill, its context and purpose.  

However, NAWL has been informed that the position of some people in Government is that this new provision will only affect applications for firearms licenses from people whose conviction for a domestic violence offence was entered after the coming into force of the provision. We believe this interpretation is wrong. First, a conviction for domestic violence was already a factor to be considered in a firearms applications; therefore, making the change non-retrospective is unnecessary. Second, this restrictive interpretation not only puts women’s lives at risk, but also leads to completely illogical outcomes. Making the provision non-retrospective enables CFOs to deliver a new firearms licence to someone who has been convicted of a domestic violence offence. However, when someone has been convicted of a domestic violence, there are “reasonable grounds to suspect” that they “may have engaged” in domestic violence. Therefore, the CFO will be obligated to revoke the licence within 24 hours. The restrictive interpretation thus leads to the absurd outcome of delivering a licence and then immediately revoking it. There is no reason to believe that Parliamentarians intended such an absurd and inefficient outcome.  

Conclusion 

Former bill C-21 was a government bill. It passed after an extensive study period. Now at the regulatory stage, there should be no space for putting women’s lives at risk by bypassing the legislative intent of key (and clear) domestic violence provisions. The legislative intent should be respected by making these two changes: 

• Remove “civil” from the definition of protection order; 

• Respect the retrospective nature of section 6.1 in developing training and other materials communicating the change in the law.